STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRIAN D PRITULA, Employee

ACCESSABILITY HOME MEDICAL & REHAB, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11610371MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 41 of 2011, if otherwise qualified.

Dated and Mailed March 20, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the appeal tribunal decision which found that the employee was discharged but not for misconduct connected with his work. The employer argues that Exhibits 1 and 2 summarize the conduct that led to the employee's discharge. The employer argues that the exhibits were received into the record by the ALJ, in spite of a hearsay objection by the employee's representative. The fact that the employee's representative objected to the receipt of the exhibits or that the ALJ overruled that objection does not mean that the exhibits are considered firsthand testimony which would support a finding of misconduct. The ALJ properly admitted the exhibits into the record. If there is some corroborating firsthand evidence in the record hearsay can be used to support that evidence. Wis Admin. Code § DWD 140.16 (1). In addition, those exhibits were then part of the record, so that if the ALJ and the commission differed on the question of whether there was corroborating firsthand evidence, or even whether the exhibits were in fact hearsay, the commission would not have to remand for further hearing to have those documents made part of the record. Further, documents can be useful in unemployment hearings for the purpose of establishing that a worker was warned about a particular behavior and complaints are often useful in establishing the background for the warning, even if they are insufficient to establish that the allegations contained therein are true. Therefore, the ALJ's decision to admit those documents into the record was correct. However, the fact that they are in the record does not mean that they are no longer hearsay.

The employer further asserts that pursuant to Wis. Stat. § 908.03(6), the exhibits are business records which are an exception to the hearsay rule. Wis. Stat. § 908.03(6) provides:

Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with s. 909.02 (12) or (13), or a statute permitting certification, unless the sources.

The employer argues that information in a personnel file is admissible as a business record. In Borchardt v. Weyerhaeuser Co. UI Dec. No. 00002241WR (LIRC February 22, 2001) the commission held that notes taken by the employee's supervisor after an incident involving the employee and a co-worker were not business records. The commission stated that warnings or investigatory notes are not business records since the authors or custodians often lack required personal knowledge of the incident that formed the basis of the discipline. Pieper Elec., Inv. V. LIRC, 118 Wis. 2d 92, 96, 346 N. W.2d 464 (Ct. App. 1984) does not compel a conclusion that the employer may introduce any written material from a worker's personnel file into the record and have it be considered firsthand evidence. If that were the case, an employer would never need to bring witnesses to a hearing as long as it made it a practice to document complaints against a worker and put them into his or her personnel file. Moreover the statute does not provide that business records are admissible hearsay but is limited to "records of regularly conducted activity."

The exhibits do not have any circumstantial guarantee of trustworthiness required for the Wis. Stat. § 908.03(24), catchall provision to apply. Further, as pointed out by the employee in his brief, the commission in Hunter v. Racine Unified School District UI Dec. Hearing No. 01605072RC (LIRC October 3, 2001) noted it is not inclined to liberally apply the catchall provision.

Exhibit 1 is an email from Ms. Mass to the operations manager which indicates that she received a phone call from "Tammy" regarding a complaint from a customer. Ms. Maas indicates that she spoke to a nurse at the facility where the client resided. This is multi-level hearsay. Exhibit 2 is also an email to the operations manager from "Tammy" which indicates that the employee was rude to her. It is critical to have firsthand testimony about such behavior as rudeness. For example, with respect to Exhibit 2, the words "wow" and "really" are not normally considered rude or disrespectful. It is important to have firsthand testimony about the manner in which the words were spoken, and the context in which they were used.

The commission is not willing to base a finding of misconduct on conclusions, such as poor attitude and lack of professionalism, from an individual who did not testify at the hearing. This is particularly true when, as here, the employee did not have the opportunity to cross-examine either person who complained about him. Further, the ALJ did not have the opportunity to assess the relative credibility of the employee, the co-worker and the customer. While it may be difficult for an employer to ask a customer to appear at an unemployment hearing, in this case, one of the individuals complaining about the employee was a co-worker and the employer could have easily presented her testimony. Under the circumstances in this case, the employer failed to present sufficient firsthand evidence to establish that the employee was discharged for misconduct connected with his work.

The employer makes an offer of proof that the operations manager ordered his subordinates to prepare narrative reports regarding the employee's conduct which were generated and maintained within the ordinary course of business. The employer then argues that it took those complaints along with the employee's other behavior, into consideration when deciding to discharge him. Given that assertion, it is certainly possible to view the document as being created for the purpose of litigation. These are not similar to attendance records or payroll records which are not subject to interpretation. At any rate, even if the commission was to agree that these emails were business records, the commission would be inclined to assign very little weight to emails with conclusions not supported by specific facts, which were authored by individuals who did not testify at the hearing. The commission further notes that the employer indicated that one of the reasons it stressed customer service was that, given the reasons that its products are needed, specifically poor health, end of life situations, or psychological or neurological deficits that cannot be corrected, it is vital to have a polite delivery person. By the same token, the stresses of the situation upon the customers and the families of the customers could understandably make them less than completely unbiased observers of any situation. In this case the employee was the only witness present with firsthand evidence about the incidents in question. Thus, the commission will not remand this matter to allow the employer the opportunity to present additional witnesses or testimony.


pritubr . usd : 145 : 5

cc: Ms. Emily Smith
Attorney Daniel Mullin

 


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